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U.S. Magistrate Judge Paul Grewal said Samsung's Galaxy S4 smartphone should not be added to the list as it would be a "tax on the court's resources."

"They consume considerable amounts of the court’s time and energy," Grewal added, according to Bloomberg, and noted that each time the two companies appear in court they take time away from others who "also require and are entitled to the court's attention."

The patent spat continues between Apple and Samsung over technology included in the latest smartphones, including the iPhone 5 and the Galaxy S3.

Apple's lawyer Josh Krevitt said excluding the latest Samsung smartphone would require Apple to submit a brand new suit, because by the time of the trial the smartphones will be out of date.

In an earlier case, Samsung was ordered to pay Apple $1.05 billion in damages, following the ruling that the Korea-based electronics firm infringed its rival's design patents. The damages were lowered to just over half the figure, and a new damages trial was ordered for November.